Mr. X and University College Dublin

Case 031015. Request for reasons for refusal by UCD to award marks claimed in respect of an examination - section 18 - adequacy of statement of reasons given - whether UCD is required to give reasons in respect of each mark claimed - whether all staff involved in the decision making process are required to give reasons for their actions.

Case Summary

Facts

The requester was not satisfied with the marks he obtained in an examination he sat in 2002 in University College Dublin ("UCD"). He submitted an appeal to UCD's Examination Appeals Committee where he claimed certain additional marks. The Appeals Committee decided that, subject only to a small percentage increase in the mark awarded, the appeal should fail. The requester applied to UCD for a statement setting out the reasons of the examiner and each member of UCD's Examination Appeals Committee for their decision that marks claimed by him were not correctly due. UCD provided a statement of reasons in its decision letter and provided further clarification in its decision on internal review. The requester applied for a review of UCD's decision on the ground that the statement of reasons given was not adequate.

Decision

The Commissioner found that section 18 requires that the head of a public body provide a statement of reasons which adequately explains why the body acted as it did and that it does not require each and every member of staff who might have contributed to or been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process.

The requester argued that there were 19 separate decisions taken by UCD relating to 19 separate points he made as to why, in his view, incorrect marks were awarded. The Commissioner found that while there will be many instances where a number of secondary actions/decisions are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates, section 18 does not entitle that person to a statement of reasons in respect of each and every action taken in arriving at the decision. She found, in this case, that the Appeals Committee did not take 19 separate decisions in respect of each of the 19 points the requester made concerning the marking of his exam script but decided, on the basis of all the evidence submitted to it, whether the appeal should succeed. She further found that, even if the Committee had taken 19 separate decisions as suggested, those "secondary" decisions, of themselves, would not have resulted in the withholding or conferring of a benefit notwithstanding the fact that that they would have informed the overall decision making process and the ultimate outcome which could, indeed, have resulted in the conferring or withholding of a benefit.

The Commissioner found that the act or decision of UCD which affected the requester and in which he had a material interest in a matter affected by that decision was the decision to refuse his appeal. On this point, the Commissioner found that the explanation provided by UCD for its decision to refuse the appeal was adequate. She affirmed the decision of UCD in this case.

Date of Decision: 27.11.2003

Our Reference: 031015

27.11.2003

Mr. X

Dear Mr. X

I refer to your application under the Freedom of Information ("FOI") Act 1997 for a review of the decision of University College Dublin ("UCD") relating to your request for a statement of reasons as set out in your letter of 1 August 2003 to UCD.

Background

I have now completed my review of UCD's decision. In doing so, I have had regard to

your correspondence with UCD in connection with your FOI request,

your submission of 26 October 2003 to my Office,

UCD's submission of 6 November 2003 to my Office,

your letter of 12 November 2003 which you submitted following Mr Rafferty's letter of 11 November 2003 setting out his preliminary observations on the matter, and

the provisions of the FOI Act generally.

Scope of Review

The details of your request are as set out in your letter of 1 August 2003 to UCD, viz. "I am now applying under section 18 of the Act for a statement in writing setting out the examiner's and each member of the committee's reasons and any findings on any material issues of fact for their decision that the marks claimed by me are not correctly due. I am seeking the reasons in respect of each mark claimed by me in my submissions to the Appeals Committee" The marks you refer to are the marks which were awarded to you in the XXX summer 2002 examination and which you appealed to UCD's Appeals Committee. UCD provided a statement of reasons in its original decision letter dated 1 September 2003 and provided further information in its decision on internal review which was notified to you by letter dated 25 September 2003. You applied for a review of UCD's decision on the ground that the statement provided is not adequate. Accordingly, my review is concerned solely with the question of whether the statement of reasons provided by UCD is adequate for the purposes of section 18 of the FOI Act.

Findings

As Mr Rafferty advised you in his recent letter, in cases where a requester applies for a review of a decision of a public body on the ground that s/he is not satisfied with the contents of a statement of reasons provided under section 18 of the FOI Act, my role is confined to deciding whether the public body has complied with the requirements imposed on it by section 18, i.e. is the statement given adequate? He also explained that while I consider that a statement of reasons should be sufficiently clear to enable the requester to understand without undue difficulty why the public body acted as it did, I do not consider that a statement should necessarily have to contain a detailed clarification of all issues identified by a requester as relevant to a particular act or decision. He further explained that my remit does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought and I note from your letter of 12 November 2003 that you accept that my remit is so limited.

Mr Rafferty made a number of points concerning the general application of section 18 in his recent letter which you clearly do not accept. Firstly, he advised you of his view that the requirement imposed on a public body by section 18 to provide a statement of reasons does not extend to requiring each and every member of staff of the body who may have been involved in the decision making process to provide such a statement and that the responsibility for complying with the provisions of section 18 falls on UCD as a body, regardless of the number of staff who might have been involved in the decision making process. You make the point in your recent letter that you specifically requested "the head" to provide you with a statement of reasons. However, you go on to say that there were 19 separate decisions affecting you made by individuals, viz. the college's examiner and Examination Appeals Committee members, and that their reasons must be reflected in the statement of reason required under section 18.

It is clear that all acts of a public body will be taken by the staff of that body. However, it seems to me that Mr Rafferty's point was that the requirement on the public body to provide a statement of reasons for an act of the body does not require each and every member of staff who might have contributed in any way or had been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process. What section 18 requires is that the head provide a statement of reasons which adequately explains why the body acted as it did. For example, if a person applies for a statement of reasons as to why his/her application for payment of a grant was refused having been considered by a committee of, say, three officials, then an adequate statement will explain why the committee, on behalf of the public body, decided that payment should be refused (i.e. the act) and what facts were relied upon by the committee in making the decision to refuse payment. Section 18 does not, in my view, require that each of the three members of the committee should individually explain their reasons for arriving at the decision.

The second point made by Mr Rafferty was that section 18 does not apply to every action of a public body. As Mr Rafferty advised you, my predecessor, in Case Number 99212 (Mr X and the Department of Agriculture, Food &amp; Rural Development), commented as follows: "In my view, section 18 does not apply to every action of a public body. The Oireachtas could not have intended that public bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the public body and its officials. Taking section 18 as a whole, it seems to me that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 18 does not apply to that act."

You argue that it is not the function of the Information Commissioner to limit the scope of section 18 as suggested and that the FOI Act is an enabling statute which must be interpreted liberally. You argue that UCD made 19 separate decisions regarding the marks awarded and that you could, if you wished, lodge 19 separate requests in respect of the 19 separate decisions made. You are correct in saying that it is not my function to limit the scope of section 18. My function as Information Commissioner is to apply the provisions of the Act. Having regard to my understanding of section 18, I agree with my predecessor's view that section 18 does not apply to every action of a public body. I note, for example, that section 18 requires that a person must be affected by an act of a body and have a material interest in a matter affected by the act or to which it relates in order to have an entitlement to a statement of reasons Furthermore, section 18(5) provides that a person has a material interest in a matter affected by an act of a public body or to which it relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member. Clearly, there will be many acts/decisions taken by public bodies where section 18 has no relevance.

The point made by my predecessor, and which Mr Rafferty considered to be of relevance in this case, was that "the Oireachtas could not have intended that public bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the public body and its officials." I agree with this view. There will be many instances where a number of secondary actions/decisions are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. However, I do not believe that section 18 entitles a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision. As my predecessor explained, "the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 18 does not apply to that act."

The 19 "decisions" to which you refer relate to 19 separate points you raised which, in your view, show that incorrect marks were awarded in the correction of your exam script. I note from your submission of 26 October 2003 that you consider that UCD should be required to provide reasons for its position in relation to each of the nineteen points made by you. It seems that you believe that the refusal of UCD to accept your claim that the marks awarded were incorrect in each of the nineteen instances you cited constitutes nineteen separate "acts" for which statements of reasons are required. If this is the case then you are, in my view, mistaken for a number of reasons.

Firstly, as UCD explained in its decision on internal review, it is not the function of the Examination Appeals Committee to re-mark scripts. The Committee is vested with the duty of ensuring that the Examination Appeals Procedures have been observed and that there has been no failing on the part of the examiner to adhere to the criteria categorised in its Procedures, viz. it must satisfy itself that there has been no substantive irregularity in the conduct of the examination, that there were no circumstances of which the Examinations Board was not aware when making a decision in relation to the result of the student's examination and it must satisfy itself as to whether the marks awarded were correct or incorrect by reference to the stated grounds of appeal. UCD advised you of the procedures followed by the Appeals Committee in its decision letters of 1 September 2003 and 25 September 2003. Having regard to that explanation, it seems to me that the Committee did not take nineteen separate decisions in respect of each of the nineteen points you made concerning the marking of your exam script. Rather, it decided, on the basis of all the evidence submitted to it, whether your appeal should succeed.

Secondly, even if the Appeal Committee had taken nineteen separate decisions as suggested, each of these decisions would not, in my view, constitute an act for the purposes of section 18, as interpreted by my predecessor (and which I believe to be an appropriate interpretation) as each such decision would have been taken with a view to informing the overall decision as to whether or not your appeal should succeed. Those "secondary" decisions, of themselves, would not, in my opinion, have resulted in the withholding or conferring of a benefit although I accept that they would have informed the overall decision making process and the ultimate outcome which could, indeed, have resulted in the conferring or withholding of a benefit.

In the circumstances, I am satisfied that section 18 does not require UCD to provide a statement in writing setting out the examiner's and each member of the committee's reasons and any findings on any material issues of fact for their decision in respect of each mark claimed by you in your submissions to the Appeals Committee. I do, however, acknowledge that UCD did, indeed, take a decision which affected you and that you have a material interest in a matter affected by that decision. The decision in question was that taken by the Appeals Committee concerning your appeal. UCD also clearly believed this to be the "act" for which it was required to provide a statement of reasons. On this point, UCD advised of the procedures followed by the Appeals Committee, details of which I have repeated below for ease of reference:

The Committee considered whether there had been any substantive irregularity in the conduct of the examination, whether there were circumstances of which the Examinations Board was not aware when making a decision in relation to the result of the student's examination and whether there were stated grounds that showed that the marks awarded were incorrect. The Committee engaged the assistance of the external examiner, Professor Stuart Turley, and the help of a XXX professional, Mr A, having first sought the observations and response of the Head of the Department of Accountancy, Professor Niamh Brennan. It considered the various submissions made by you and on your behalf along with the responses from the Department and the reports of Mr A and Professor Turley over fifteen meetings. The Committee found the explanations and submissions offered by the internal examiner, Professor Niamh Brennan, and, to a greater degree, the external examiner, Professor Stuart Turley, more persuasive than those offered by you and on your behalf. The Committee noted, in particular, that professor Turley judged that a mark somewhat lower than the 71.5% suggested by Mr A was defensible and consistent with application of suitable criteria for assessment of degree level skills. The Committee concluded that, subject only to the adjustment Professor Brennan had suggested, an increase of the mark by 2.5%, the appeal should fail as it was satisfied that there had not been any substantial irregularity in the conduct of the examination, or circumstances of which the Examinations Board was not aware when making its decision and that the stated grounds of appeal did not reveal that the marks awarded were incorrect. The Committee was satisfied that the University examiners had properly exercised their academic and professional judgement in marking the examination and, accordingly, your appeal failed.

I also note that UCD provided you with copies of documents it considered relevant to your appeal and to its decision on the matter. It provided copies of the reports of Professor Niamh Brennan, Mr A and Professor Stuart Turley, the minute of the appeals Committee outlining the deliberations and decision of the Committee. I am satisfied that UCD has, through its decision letters of 1 September 2003 and 25 September 2003, adequately explained why it refused to uphold your appeal. You will appreciate, of course, that it is not within my remit to consider the appropriateness of its decision to refuse to uphold your appeal or the manner in which your appeal was processed. It is sufficient that UCD adequately explains why it acted as it did. I am satisfied that it has done so in this case. I find, therefore, that UCD has complied with the requirements imposed on it by section 18 in this case.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the decision of University College Dublin in this case.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.